Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Friday, December 20, 2013

Justice Holmes is at leisure during the holiday recess, but I am moved to protest mildly at the manner in which he is described by a leading proponent of the New Originalism, the set of doctrines whose premise is that the text of the Constitution, as understood when it was adopted, should be applied to resolve modern disputes. Lawrence B. Solum is a prominent and articulate leader of this school of thought, and is particularly distinguished by his efforts to clarify its theoretical basis. In a recent post on his Legal Lexicon blog, Professor Solum lays out the new theory as a subset of what he calls "Formalism," a hard-minded approach to law. As applied to the Constitution, it calls for application of the rules found in that text without much regard to judges' views of the purpose or wisdom of clearly stated law. He contrasts this with "Instrumentalism," which he says is the doctrine many law professors teach, and which allows a judge to interpret laws according to their presumed purpose and likely result, rather than according to the meaning of their text. I don't want to discuss this characterization of two dominant schools of thought, but Solum appoints Justice Oliver Wendell Holmes the father of Instrumentalism, and I do object to that.

The late Judge Robert Bork, and Justice Antonin Scalia, both contrasted their versions of originalism with the dominant jurisprudence of their day, which considered the Supreme Court a common-law court, and analyzed the manner in which constitutional rules emerged from particular decisions. Holmes is often associated with this view, which is indeed the antithesis of the New Originalism. He is one of the founders of an historical, empirical approach to determining how rules evolve from judges' decisions in particular cases. Holmes observed that the decision comes first, and justifications afterward. Judges in his view often decided on the basis of an "inarticulate premise" not clearly stated in their opinions. Later investigations of the way in which judges in practice decide cases are lumped together under the rubric "legal realism," which soon departed from Holmes's views, but that is another story.

Holmes's jurisprudence was indeed founded on a theory, one he claimed to have derived from empirical investigation, that the only law which can be said to be enforced or enforceable is the decision of a court which authorizes the government to bring its powers to bear on particular persons. Rules to govern such decisions are derived from study of previous decisions in similar circumstances, rather than directly from the text of statutes or constitutions. Holmes did not think the opinions written by judges were good sources to look at when searching for applicable rules, it was their decisions in particular circumstances which mattered, and gave meaning to rules. Neither Holmes's historical studies nor his search among established precedents produced a theory of textual interpretation like the one Solum refers to as "Instrumentalism." Quite the contrary, the common-law tradition with which Holmes is properly identified searches for enforceable, constitutional rules in another place entirely, in the "body of precedents by which we are bound. . . ." Olmstead v. United States (1928) (Holmes, J., dissenting).

Friday, December 13, 2013

In this busy time of year, Holmes is paying less attention to our affairs, and won't have much to say for a while. While he is otherwise occupied, I thought it might be a good moment to talk about the question raised in a fine new book by Thomas Healy, The Great Dissent, which presents us with an old conundrum: Why is Holmes given credit for founding the modern constitutional doctrine of near-absolute protection for the right to speak freely about public affairs, when he was profoundly hostile to talk of rights in general, and wrote several opinions in which he upheld criminal convictions contrary to our modern understanding of the First Amendment?

One suggestion is that there were two incompatible strands to Holmes' thought. The first is "deference to the legislature," a disposition to allow majority votes to prevail on all questions, including those respecting rights of minorities. The second strand is a tolerance of diversity, and a conviction expressed late in his career, that free debate is essential in a democratic society.

In the years after World War II, after Holmes had passed from the scene, his disdain for talk of natural rights, and his appalling support for the pseudo-science of eugenics, began to seem darker and more ominous than they had during his lifetime, when they were commonplaces of Progressive politics. He fell even farther out of favor in the 1950s, when his rubric, "clear and present danger," became a favorite of prosecutors in the McCarthy era. I believe it was the scholar Gerald Gunther who first suggested that Holmes had simply changed his mind. Gunther speculated that this had happened in the summer of 1919. Before that summer, Holmes had written three opinions for a unanimous Supreme Court, upholding criminal convictions of persons who opposed the war effort and the draft, while after that summer, he wrote a powerful dissent (Healy's "great dissent") in support of defendants who had been convicted of criminally seditious speech, because they had called for a general strike of workers during the war.

Various causes for this change of mind have been suggested. Gunther proposed the hypothesis that a young judge, Learned Hand, had persuaded Holmes to change his mind. Others have suggested Holmes' friend and colleague Louis D, Brandeis as the cause, still others have pointed to the influence of a young law professor, Zechariah Chafee, for whose work Holmes expressed admiration and pleasure. Still others have pointed to the influence of a circle of young men--Felix Frankfurter, Harold Laski, and others, whose praise meant a lot to Holmes.

Healy has collected all these suggestions into one, and propounds a hypothesis that these different influences converged in what amounted to a campaign, over the summer of 1919, to get Holmes to change his mind. The suggestion is put forward well and persuasively, with a great many citations to original documents of the time. In response to counter-arguments, Healy says that Holmes was moved to change his mind by a deep emotional need for the praise that the (comparatively) young men around him offered, that he feared would be withheld if he continued to uphold convictions for political dissent.

OK, this is turning out to be a very long post, but Healey neglects to mention any evidence or arguments to the contrary, and although he mentions my biography of Holmes he fails to mention our disagreement. Why should this matter? Maybe it doesn't, but the First Amendment doctrines at issue are important and regularly being revisited, and it would be encouraging to know that their history is better understood,

I would like here to try to put the question objectively, to avoid the tribal arguments that so sometimes characterize discussions of questions that are politically charged, of which I too have been guilty. The folks over at the Yale Cognition Blog tell us that once a question becomes the subject of political controversy, arguments become polarized, and factual information is just slotted into the old arguments. The question of Holmes' views on the First Amendment has certainly become polarized in this way, at least among those of us who write about it, and I would like here to try to stick more closely to historic fact and legitimate inference, and avoid assembling an argument to support a predetermined position.

So, let's take a page from the Nate Silvers of the world, and perform a thought experiment. Take Holmes in the spring of 1919, as well as we can describe him in objective terms. What is the likelihood that the influences Healy describes would cause him to change his mind on the important question of constitutional protection for political speech? (You will see, I hope, that I am putting this as a question of probability, in Bayesian terms, as I somewhat dimly understand them).

To summarize briefly what I think is not in dispute: in the spring of 1919 when the Supreme Court adjourned its term, Holmes was 78 years old, a veteran of almost 55 years of law study, practice and service as a judge. Despite his age he appeared to be at the height of his intellectual powers. For the previous twelve years he had been a justice of the United States Supreme Court, but was not yet well known to the public. He was ambitious and somewhat arrogant, and very grateful for the praise of his young followers in the law. His career had been devoted to the study and practice of the English and American common law, and he had not often addressed questions arising under the federal constitution. When he did address the federal Constitution he tended to assimilate it to the common law, saying that the terms of the Constitution expressed principles derived from English common law "transplanted to American soil," and confessed ignorance of the early development of First Amendment doctrine. He usually avoided talk of "rights," which he thought were claims of transcendent principle, and preferred to speak instead about the "privileges" afforded to speech and the press in the common law. He said the phrase "clear and present danger" had emerged from his long study of the common law. Holmes supported US intervention in the First World War, and derided those who opposed both the war and the draft. At the moment in question he had just written three opinions for a unanimous Court, expressing in summary form his belief that constitutional freedom of expression was a privilege which could be defeated by a showing that it posed a "clear and present danger" of causing some harm that Congress had the power to forbid.

The hypothesis is that criticism he heard of these views during the summer of 1919 caused him to change his mind. What are the chances that criticism from friends would cause him to change his mind over the course of the summer?

If the hypothesis is put this way, it has always seemed to me that the chances that Holmes would change his mind are close to zero. So I would bet on the null hypothesis, that there was no change. The change in language that appeared in his dissent the following fall therefore must be attributed to differences in the cases, and to the greater freedom had when speaking in dissent. That is just a bet, of course, but all we have are probabilities.

Thursday, December 5, 2013

Almost a century ago, the United States government forcibly deported Native Americans from the Old Southwest, between the Alleghenies and the Mississippi. "Indian Removal" was authorized by federal statutes, and under that fig-leaf of legitimacy the Jackson and Van Buren administrations removed Indians from their homes to detention facilities, and deported them. In the last stages of this effort, the Cherokee were obliged to make their way on foot from Georgia to Oklahoma territory, a voyage that thousands did not survive.

We are in the midst of a similar deportation program in the new Southwest, from Georgia to Arizona. Two million residents of the United States, the majority of whom are Hispanic and roughly half of whom entered the United States as children, or as adults with permission, have been deported since the program was authorized in 1996. Hundreds of thousands of long-term residents, hard working, tax-paying Americans have been "removed" (that term of art has been revived). Hispanic Removal has very little to do with control of the nation's borders or immigration enforcement, but is targeted at millions of immigrants who have settled here, including those whose status as permanent residents and naturalized citizens is being revoked for minor offenses.

Three quarters of the total, 1.5 million, have been deported by the Obama Administration. Although the president has staunchly championed reform of the immigration laws, he has accepted a deeply flawed bargain with Republicans who have insisted on ever more aggressive "enforcement" of the deportation program. Secretary Janet Napolitano constructed a program in which "criminal aliens" were supposed to be deported, but Congressional Republicans demanded that 34,000 detention "beds" be filled at all times, and 400,000 immigrants deported each year. These quotas are buried in appropriations bills, and so have largely escaped notice. The quotas cannot be achieved without deeply violating the norms of due process of law, and 400,000 immigrants guilty of major crimes cannot be found each year. An out-of-control program of mass deportations has resulted, and has created a human rights crisis.

The Hispanic Removal program depends largely on state and local police, who can be deputized to carry out federal law. Few jurisdictions have been willing to turn over their law enforcement resources to the federal government, however, and the Bush Administration created through executive orders something called "Secure Communities," in which local police are required to inform federal officials of the identity of all those they detain who are suspected of lacking proper immigration or citizenship papers. Many states objected to this removal program, but the Obama Administration has made it mandatory, as the quotas for detention and deportation cannot otherwise be met.

Secure Communities, like the detention camps of Indian Removal, a program of doubtful constitutionality, is essential to Hispanic Removal. Congressional Republicans have reneged on whatever bargain Democrats thought they had made, and insist that any reforms in immigration law depend on increased and ever more cruel efforts to deport millions of immigrants; even the comprehensive reform bill passed by the Senate, S 744, in exchange for a grudging path to citizenship for some number of undocumented immigrants, would greatly expand the population subject to summary "removal" and would redouble the graft-laden system of profitable detention centers.

The removal of Hispanics is made possible by the Secure Communities program, which is a creature of Executive Orders and which the President could abolish with a stroke of a pen. There is no longer any excuse for maintaining it. Agamemnon sacrificed his daughter to secure fair winds for his attack on Troy; as Roger Algase at ImmigrationLawBlogs points out,

Has not President Barack Obama sacrificed the lives, hopes, dreams and family connections, if not the physical bodies, of well over a million people during the past five years on the altar of deportation in order to appease the god of "enforcing the law" and to try to gain fair winds for comprehensive immigration reform?

And is Obama not continuing to sacrifice over 1,000 immigrants each day on this deportation altar?

Monday, December 2, 2013

As I write this Monday morning the Supreme Court is hearing oral arguments in Michigan v. Bay Mills Indian Community, a dispute that arises out of the tribe's attempt to establish a casino on purchased land, over the objections of the State of Michigan. The tribe is asserting "sovereign immunity" to suits in federal court, a claim that might be decided on narrow statutory grounds, but that might oblige the Court to address the constitutional status of Indian nations, a question governed by confused and often contradictory precedents.

There are two "sovereign immunity" doctrines. The first was a common-law doctrine that Holmes explained in 1907, Kawananakoa v. Polybank. This was simply the practical result of positive law: property rights were created by law, and so the only claims that could be asserted in a court were those that the lawmaker had created. It followed that a government could not be sued in its own courts without its permission. This "sovereign immunity" rubric does not apply to this proceeding, since Michigan is suing a tribe in federal court, and the claims it asserts are created by federal law, not Indian law. The second sort of "sovereign immunity" is a constitutional doctrine discovered by the Supreme Court in the structure of the federal system, in which state governments are accorded a dignity inconsistent with suits by private individuals in federal courts, unless Congress has granted express permission to extend federal court jurisdiction to such suits. (I am not going to cite precedents, which are numerous, but it is interesting to note that this modern doctrine grows out of suits brought under the Indian Gaming Regulatory Act, which governs the present suit as well.) The question therefore might be posed as a constitutional claim, that the sovereign Indian nations are entitled to the same dignity as state governments, and accordingly are immune from suits in federal court, except when Congress expressly authorizes them. Victory for the Bay Mills Community would help define the inherent sovereignty of Indian nations in our federal system, a sovereignty that as all law students learn was defined almost two hundred years ago by Chief Justice John Marshall, who thought the United States of America was an empire in which Indian tribes held a subordinate and dependent status as domestic, rather than foreign, nations.

Monday, November 25, 2013

Tomorrow (Tuesday) the Supreme Court will decide whether to hear one or more of four petitions for certiorari asking the Court to rule on whether corporations have a right to deny insurance coverage for their employees, for preventive health care measures, to which the corporations have objections based on religion. These objections and the claimed right to religious freedom, are said to belong to the corporations themselves, or only to their proprietors. Most of the claims arise under a federal statute, the Religious Freedom Restoration Act, which narrows the scope of Court-established doctrine that religious institutions are obliged to obey neutral laws of general applicability. The statute applies to "persons," and the Tenth Circuit Court of Appeals, in the Hobby Lobby Stores case, found in favor of the claim. If corporations have First Amendment rights to political speech, it was difficult for the court to see why they might not have other First Amendment rights. Indeed. One of the petitions renews broad Commerce Clause challenges to the misnamsed Affordable Care Act that have already been rejected, and it seems unlikely that the Court would hear them again, but it seems all but certain that the Court will hear one or more of the religious-freedom claims, as the Circuit Courts are divided and these are certainly important disputes to resolve.

What would Holmes say? Well, Citizens United is now the law, so there is no going back on that path. But he would likely consult the common law, the ultimate source of corporate personhood in our constitutional law. In his opinions for the Massachusetts Supreme Judicial Court and in his scholarly writings he held that newspapers (and presumably other news organizations not then imagined) had a qualified privilege to publish statements that might injure a person's reputation, because of the overall benefit to society of a free exchange of information and ideas. The Supreme Court has followed the rough outlines of Holmes's reasoning in defamation cases, and it seems a reasonable way of distinguishing First Amendment rights. There is a benefit to society from allowing enterprises as well as individuals to express themselves--freedom of the press belongs to the enterprise that owns own--but it is difficult to see why business enterprises should be freed from the obligation to obey laws of general applicability. Aside from the absurdity of corporations becoming Christian Scientists and refusing to provide health insurance at all, there is the blunt fact that corporations do not have consciences or freedom of conscience, and cannot generally follow religious practices, any more than they can vote. When you form a corporation you do so partly because it shields you from liability for the corporation's acts, and in exchange you accept the reality that the corporation must be guided by business practices to which religious objections might be raised, such as borrowing and lending money at interest.

These petitions bring to mind another point that might help to bring clarity to the larger contest over Obamacare. The Affordable Care Act is primarily a regulation of the national insurance market, and not of health care. Like earlier legislation governing doctors and hospitals, it affects health care only indirectly by setting conditions for reimbursement. As Governor Romney reminded us during the last campaign, everyone in the United States has a form of health insurance, because Congress in its wisdom, exercising the taxing and spending power, provides that hospitals receiving federal funds must keep their emergency rooms open to everyone. The Affordable Care Act reforms that insurance system, and requires everyone to pay a suitable premium for the insurance they receive. Holmes was one of the early proponents of social insurance, which allows the community as a whole to bear the burden of unforeseen expenses when an individual is injured. Does anyone really have a problem with that?

Friday, November 22, 2013

A colloquy on reddit yesterday got me thinking about the deep differences in world view among the Supreme Court justices, past and present. Holmes worked out a personal philosophy that he called "mystical materialism," which he compared to Spinoza's, minus the deductive proofs. As far as I can tell it was an atomistic materialism, but one in which he accepted the reality of things like consciousness that were not yet explained by materialist science . He championed Kant against Hegel in the intellectual debates of his day, and so one might say he was a materialist who accepted that many of the features of the world are features of our perceptive apparatus that we cannot escape. He was always trying to hear the "clang behind phenomena" that he felt certain was there.

Am I too far into the weeds? What I am working toward is the lifelong quarrel he conducted with German idealist philosophy. Who now would bother making fun of Hegel? He doubted the objective existence of human rights, or indeed any moral principles--the "natural law" to which many people still refer. He was particularly rude about suggestions that natural law should trump positive law--the enactments of legislatures and the decisions of judges.His materialism, which he shared with his closest intellectual friends, contributed to his rejecting constitutional textualism or originalism. The Founders undoubtedly accepted the reality of natural rights and other moral principles (although it is not clear how much these are embedded in the Constitution), but Holmes cheerfully denied that the text of the Constitution could trump the more pragmatic decisions of the Supreme Court.

This larger quarrel would come up in cases where natural rights to property, or the objective existence of a business enterprise, were at issue, and in those cases Holmes' materialism seemed appropriate. He insisted that property rights were just a summary designation for past decisions of courts concerning legal conventions, and so could be abolished or altered at will by state legislatures. He thought natural resources were not inherently subject to property rights or articles of commerce, and so could be protected from commercial exploitation. And so forth. Which brings us to the subject of yesterday's conversation: how would Holmes respond to the Citizens' United case? The curious doctrine that business corporations had due process rights to their property, and even to their expected earnings, which they could assert in federal court, as we know first appeared in the Santa Anna Railroad Case not long after the Fourteenth Amendment was adopted. I don't recall an instance in which the personhood of corporations came before Holmes' Court, but it sounds like the sort of thing he rejected. The present justices have got to the point, however, where business corporations are allowed standing in federal court, and will be heard this term to assert their supposed right to religious freedom. The case is Sibelius v. Hobby Lobby Stores, Inc. and the TEnth Circuit has already held that if corporations have freedom of speech protected by the First Amendment, why not freedom of religion? The case arises under a statute, it is true, but why imagine that Congress would commit such a folly? We undoubtedly will hear learned arguments that a corporation was a distinct person with rights at common law, and the statute must be construed accordingly. Citizens United is a mere bagatelle compared to these new assertions. Respect for precedent notwithstanding, I think Holmes would be. . . well, bemused.

Wednesday, November 20, 2013

There has been so much talk about the Constitution that I have had trouble selecting one subject, but there was a recent flurry of posts that calls out for comment. Supreme Court Justice Stephen Breyer gave a graceful interview to La Revue des deux Mondes, an honored journal that was in days of yore closely followed here in New England. Justice Breyer spoke about Proust and other authors who meant a great deal to him, and in answer to a question, quoted Justice Holmes,who also in his day read and admired French literature. Breyer's interview was published (in English) in The New York Review of Books, which is more or less the American equivalent of the French journal. This prompted an extraordinary outpouring of bile from a right-wing newspaper, the New York Post,

In Rupert Murdock's Post, columnist Kyle Smith condemned Breyer for quoting Holmes. Breyer had repeated an anecdote about Holmes mildly chiding his brethren for holding that Broadway theaters was not sufficiently suffused with the public interest to justify government support or regulation. Kyle Smith then worked up a head of steam condemning Breyer, not only for quoting Holmes, but for giving an interview in French, for reading Proust, and for speaking of his own method of interpreting legal texts, which differs from Justice Scalia's. Smith garbles and misunderstands the interview, but the point is evidently to express hatred for these honored, cosmopolitan men, who have the temerity to be citizens of the United States.

Tuesday, November 12, 2013

Originalists have been conducting an interesting discussion, largely among themselves, concerning the conflict between their new theories of textual interpretation and an older common-law tradition--with which Holmes of course was identified, although his name doesn't come up often these days. The conflict is straight-forward: Holmes and many judges of his generation believed the Supreme Court was established by the Constitution as a common-law court, and accordingly gave great deference to its own precedents, a doctrine we like to label with the Latin tag stare decisis. Justice John Paul Stevens was a strong defender of precedent, as a recent article by Roger Citron reminds us. Citron calls Stevens "the last common law justice," and Lawrence Solum has blogged a link to his article on his own originalist Legal Theory Blog. Professor Solum seems to be pursuing ideas in an article by Kurt Lash that he has also blogged.

Lash reminds us that the Supreme Court occasionally overrules its own precedents, but the opinions in recent cases don't give a clear explanation of when and why precedents should govern and when they should be overruled. His complaint is that opinions overruling precedent don't state any clear theory, and he comes to the aid of the justices by saying that they have silently adopted something called the theory of a "Living Constitution."

There are a great many assumptions buried in his premises. Lash and apparently Solum assume that precedents are overruled when they are found to be in error, while of course that is rarely given as the reason; most frequent perhaps is the claim that the precedent does not apply to the modern conditions in which disputes resembling those of the past arise. The theory that Lash calls "Living Constitutionalism" is simply that changing conditions may require a different understanding of the way the Constitution's principles play out. This is not a doctrine that calls for changing or reinterpreting the values enshrined in the text of the Constitution, it is only a way of understanding that text, one that differs from Lash's.

There are other problems with Lash's article, which certainly has the virtue of the transparency he recommends, and rightly says that the Court's opinions often lack. What I want to point out here is only that Justice Stevens is also celebrated as the last liberal originalist,and Justice Ginzburg reasonably claims that he was not the last, and that she too is an originalist. The question is not whether the text of the Constitution should govern the decisions of courts, but how that text is to be understood. We would all be pleased if the justices would speak more plainly about the way they understand the Constitution--what sort of document it was and is.

The Washington Postvia Immigration Proftells us that the State Department has been refusing visa requests from most of the Afghani interpreters who have been risking their lives to support our troops, although the interpreters were promised safe conduct to the United States. The interpreters say convincingly that their lives and the lives of their families are increasingly in danger as US troops withdraw, but their requests for visas have been turned down supposedly because they do not have a reasonable fear of retaliation. The true reason seems to be that the interpreters are still needed, and are being forced to serve another hitch of unknown length, until they are no longer wanted. Words fail me.

Thursday, November 7, 2013

oThe dispiriting arguments in Bond v. United States the other day remind us that the Right has mastered the consciously liberal rights-talk, and the legal process jurisprudence, that came to dominate Constitutional law in the 1950s and 1960s, and which continues to dominate the law schools. The rights of white people to be free from race discrimination, and the rights of corporations to free speech and religious belief, dominate the Supreme Court. There is a revival of old states-rights arguments, reviving eighteenth-century sensibilities with seemingly neutral principles of federalism. The result is a steady erosion of the Second Reconstruction, the Civil Rights era when the Supreme Court began at last to give some force to the commands of the Reconstruction Amendments. As we have seen in recent cases like Bond, and the attack on the Affordable Care Act, neither the Solicitor General nor the liberal minority on the Supreme Court have a standpoint from which to resist this new majoritarian rights talk.

Teachers of constitutional law in my generation are almost without exception white men from similar backgrounds, educated at two or three of the leading law schools (most often Harvard). The casebooks from which we were taught, from which we now teach, reflect a necessarily narrow perspective. The new thinking is being nurtured among young scholars, happily a more diverse group in every way who have grown up with a firmer understanding of the politics of identity and the factual reality of legally constructed identities based on race, gender, and sexual orientation. The youngsters are exploring the facts of history, rejecting the mythologies in which were educated. Professor Juan Perea reminds us that constitutional law casebooks until recently often did not even mention slavery, one of the structural features of the Constitution, or mentioned it only in passing as an eccentricity abolished by the Thirteenth Amendment. Professor Zephyr Teachout restores to us the "anti-corruption principle" that informs the Constitution, a product of the natural law thinking of the eighteenth century and central to the celebrated original meaning. The anti-corruption principle appears to be the liberal obverse of the "civic virtue" celebrated by the Right, more firmly grounded in historical fact. Professor Alexander Tsesis points out another maxim of constitutional law, the communitarian basis of individual rights, a thread of meaning that runs through the Declaration of Independence, the Bill of Rights, and the Reconstruction Amendments. As the Supreme Court itself becomes more diverse and modern, it may free itself from the old orthodoxies and consult this new and more realistic understanding of history and national identity.

These thoughts are prompted largely by the fourth annual Constitutional Law Colloquium held at Loyola University School of Law this past weekend, November 1- 2.
Under the friendly guidance of Professor John Nowak and colleagues, the colloquium is designed to give a new generation of young scholars a chance to present their ideas and to talk with each other, and the result is a gathering of young people of diverse shapes, sizes and colorings, from diverse backgrounds. The energy and intelligence of the presentations was enormously encouraging. I can't summarize in any useful way the diversity of papers given in simultaneous sessions, but the link embedded above will take you to the program and to the list of presenters, some of whom are putting up their papers on ssrn, and others who perhaps will share drafts. The common theme among the papers I was able to hear was an insistence on factual history, a disdain for conventional mythology, and a firm grounding in the realities of the present day. Holmes I hope would have been glad to see his racial ideas discarded, and his belief in the importance of history vindicated.

Wednesday, November 6, 2013

One of the many odd things about Bond v. United States, argued yesterday before the Supreme Court is the radical character of the case. Over at the Originalism Blog Michael Ramsey has posted intelligent remarks and links to other originalist commentary; Senator Ted Cruz addressing the Heritage Foundation gave his learned opinion the other day; but by and large Bond's suit has been treated as a curiosity with no special importance--and it seemed plain at oral argument that at least six of the judges were sympathetic to Bond's argument.

The briefs and argument resembled a scholarly debate between rival theories of the Constitution. But Article III of the Constitution says that the justices may decide only particular "cases" or "controversies," and we have always understood that they were not supposed to issue legislative-style rules or doctrines. What is going on? Considered as a case or controversy, Ms Bond's appeal is settled by precedent, the famous case of Missouri v. Holland, but her advocates want to change all that, and a majority of the justices seem willing to listen to the new theories presented to them.

Considered on its facts, the case is not difficult. Bond tried to poison her neighbor and her neighbor's child, and came close to success. She was tried and convicted of a felony and sentenced to six years in prison. She does not deny the facts that were determined against her, nor does she claim that her conviction or her sentence were unfair. She is not asserting any right of her own, in the ordinary sense. The crime was committed in a suburb of Philadelphia, and Bond claims that the statute under which she was convicted infringes upon the sovereignty of the Commonwealth of Pennsylvania, and therefore was invalid as applied to her, and her conviction should be overturned as unconstitutional. In other words, she is asserting the rights of the state to be free from federal intrusion.

The case was argued by Paul Clement and Solicitor General Don Virrelli, who were antagonists in the challenge to the Affordable Care Act, and their presence alone signals the importance of the case--it is another round in the battle for states' rights, lately relabeled "sovereignty."

The claims put forward on behalf of Bond have some plausibility because the federal statute under which she was charged is the Chemical Weapons Convention Implementation Act, and it seems a reach to apply the language of an international treaty to the attack made by Bond on her neighbor and rival. Maybe the prosecution was a stretch, but local law enforcement declined to act, and the U.S. Attorney who brought the suit was applying a federal statute according to its terms. The prosecution was at most ill advised, but under existing case law it was not unconstitutional.

The attack on federal authority began with insistence that the suit was absurd, a patent overreach of federal authority, and much of the argument and commentary was devoted to finding a "middle ground." Only three of the justices seemed to support the Solicitor General's argument that the prosecution was proper and the result was unremarkable. As in the earlier contest over Obamacare, however, Virrelli was unable to respond persuasively to the claim that the federal government had unlimited power to revise the Constitution to suit the demands of a treaty. What then will happen to states' rights, the Chief Justice demands, if the President and the Senate adopt a treaty that allows them to replace all local law enforcement with federal prosecutions? Virrelli was able to respond only with the assertion, undoubtedly correct, that such a treaty would be politically impossible. But that hardly answers the claim that in theory, the federal government could fulfill the worst fantasies of the Right.

The other curious aspect of the case is that no one refers to the opinion in Missouri v. Holland, although that is what the suit aims at. In that case, the same arguments were advanced and rejected by the Supreme Court. The State of Missouri was offended in its dignity by the intrusion of Mr. Holland, a federal game warden, enforcing the federal Migratory Bird Treaty Act, in disregard of the state's traditional control over hunting, enshrined in the language of the Tenth Amendment. Justice Holmes, speaking for the Court, pointed out that the enforcement of treaty obligations was itself a part of the constitutional scheme, and necessarily infringed upon what would otherwise be state prerogatives:

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. . . . It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. . . What was said . . . with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. . . . Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. . .We see nothing in the Constitution that compels the Government to sit by . . . . It is not sufficient to rely upon the States. The reliance is vain . . . .

The Constitution, in short, already provides a principle that allows us to weigh the claims of the state against the federal government's necessary power. The federal government may act in matters in which the states individually are incompetent to act. The treaty against chemical weapons surely provides such a power, and it can reasonably be implemented through a statute that punished the use of toxic chemicals as a weapon. Reliance on the states is vain.

Monday, November 4, 2013

Carol Anne Bond admittedly tried to injur or kill a neighbor, with whom her husband had fathered a child. The attempt failed, and local law enforcement seemed to take no interest in what may have seemed a squabble between rivals. The U. S. Attorney for the Eastern District of Pennsylvania took the case,however, and charged Bond with a violation of a federal statute that implements the Chemical Weapons Convention Implementation Act, she admittedly having possessed a toxic chemical to be used as a weapon. Bond was convicted and sentenced to six years in prison. Her appeal has become a cause celebre for the radical Right and has reached the Supreme Court. Her lawyers have asked the Court to overturn a century-old precedent established in the famous case of Missouri v. Holland,familiar to every law student, in which Justice Holmes, writing for a seven-member majority, rejected Missouri's claim that the Migratory Bird Treaty Act was unconstitutional, because the TEntrh Amendment to the Constitution protects a state's right to regulate hunting. Bond's lawyers want the Court to say that Chemical Weapons Treaty can't be applied to her, reviving the claims rejected in 1920. I don't want to get into the weeds, Lyle Denniston at SCOTUSblog has a good summary and preview of the arguments. Suffice it to say that Holmes's opinion in 1920 treated an originalist argument with something like contempt:

The treaty in question [the Migratory Bird Treaty Act]does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.

A state, Holmes said, although it was accustomed to define hunting seasons, had no claim over migratory birds passing through it, and had no right protected by the Tenth Amendment. This has unsettled the new Right, who are energetically defending states' rights. Te Federalist Society and the Heritage Foundation may have also been aroused by Holmes' express rejection of the cheese-paring textualism that has become a mechanism for overturning precedents. Holmes rejected the textualist argument presented to the Court, and answered it with a copious citation of precedents establishing the principle that the federal government had authority to accomplish what the states alone could not, when exercising the treaty-making authority conferred by the Constitution. Protecting natural resources was a matter of national, Holmes said:

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.

In another case on the Court's docket this term, a similar challenge is being made against the federal government's authority to regulate interstate air pollution, and ultimately to address climate change. Holmes seems to stand in the way in that case as well.

Wednesday, October 30, 2013

Hannah Finnie at PoliMic indirectly makes a point that we have been suggesting, that when it comes to freedom of expression, Holmes is the anti-Scalia. Holmes said in his famous Abrams dissent that expressions of ideas are given near absolute protection, because we want our politics and government to be founded on truth, and the best test of truth is the ability of an idea to get itself accepted in the marketplace. In the McCutcheon case currently before the court, wealthy donors are seeking the ability to give unlimited amounts in federal elections. If granted that right, they would be able to wreck at least one marketplace:

Solicitor General Verrilli, who is representing the government, said as much in his oral argument. "Less than 500 people can fund the whole shooting match," he said, and if the aggregate limits are removed, there is a very real risk that "The government will be run of, by, and for those 500 people and that the public will perceive that the government is being run of, by, and for those 500 people."

Justice Antonin Scalia is a fierce advocate of freedom of expression, but he doesn't much value precedents or arguments from principle. He is a textualist, and the First Amendment says that "Congress shall make no law. . ." The Court decided years ago that money is speech, and -- well, that's the end of the discussion. As Finnie notes, Scalia is likely to agree with Mr. McCutcheon and his co-plaintiff the Republican National Committee. Maybe money sometimes is equivalent to speech, but we don't allow megaphones to drown out the other debaters. . . .

Who knew? Several states have "Anti-Klan" laws that bar wearing masks in public. Thank you to Ruthann RobinsonConstitutional Law Prof Blog for letting us know that the Georgia Supreme Court upheld one such law. The court unfortunately concluded, however, that wearing a Klan costume in a protest could be prosecuted because the defendant should have known it would cause a disturbance. In concurring and dissenting opinions, two of the justices argued that prosecution should be permitted only when the defendant had the specific intent to cause violence, and violence was imminent. Those opinions nicely reproduced the disagreement in Abrams v. United States (1919) over the meaning of Holmes's "clear-and-present-danger" standard. Many such anti-Klan statutes remain on the books, forbidding the wearing of masks in public, but the minority justices in the Georgia case were right, prosecutions under such laws are forbidden when they would infringe First Amendment rights, as measured by Holmes's dissent in Abrams, and adopted by the Supreme Court in later cases:

The Klan's white robes, hats, and masks may all express the idea of a threat, but ideas are protected. Only an overt act accompanied by a specific intent violates the criminal law.

Tuesday, October 29, 2013

One is tempted simply to repeat, over and over, "taxes are what we pay for a civilized society". My favorite stand-in for Holmes in today's world is Judge Richard Posner, who has blogged a useful reminder of Holmes's aphorism:

Is it realistic to think federal spending could be cut substantially. . . ? The answer, I think, is no, provided the focus is limited to the short run—the next few years. . . . Of course there is a large federal deficit, but it is quite manageable with modest increases in income tax rates coupled with broader coverage obtained by reining in some deductions and exclusions. The experience of the George W. Bush Presidency is that reducing federal income tax rates from the level that prevailed in the 1990s does not promote economic growth, though it does increase economic inequality. . . . Regarding any increase in taxation as anathema, conservatives want to shrink the federal government by drastically reducing federal spending, even if that means underfunding research, national defense, the air-control system, flood control, law enforcement, and other normal government expenditures. That is not a promising approach.

Thursday, October 17, 2013

Roger Algase on the Immigration Daily confirms that the right wing nationalists in the House will take their revenge by blocking any consideration of immigration reform, except presumably for expanded deportations that are proposed in seperate bills. No chance for a path to citizenship. Algase quotes Rep. Raul Labrador (R-ID), key member of House Judiciary Committee and former advocate of reform (via Politico):

I think that what [President Barack Obama] has done over the past two and half weeks, he's trying to destroy the Republican Party and I think anything we negotiate right now with the president on immigration will be with that same goal in mind, which is to destroy the Republican Party and not to get good policies.

The President and the Senate have among themselves negotiated a bill that promises "comprehensive immigration reform" -- "CIR" is the buzzword and the President announced today that getting a bill through the House would be a top priority now that the government shutdown has ended. But there is not much sign that is likely to happen--John Boehner has been echoing the Rightwing Nationalist cry that there must be no path to citizenship for undocumented immigrants. The House instead has taken up several bills that will exacerbate the human rights crisis created by an out-of-control deportation program. Even the Senate bill calls for increased "internal enforcement"-- Newspeak for the program of deporting hundreds of thousands of persons already settled in the United States -- by broadening the categories of Green Card holders and naturalized citizens who can be stripped of their rights and summarily deported, and authorizing the outrageous and punitive state laws that were struck down by the Supreme Court a little while ago in Arizona v. United States. The Democracts are again negotiating with themselves, giving up federal immigration policy to the governor of Arizona, in exchange for an empty promise of a "path to citizenship" which has already been rejected by House Republicans. The next shutdown will be a shutdown of immigration reform.

There has been much discussion of Justice Scalia's interview, mentioned here a few days ago, in which among other things he backed away from an old remark, in which he said that he was a "faint-hearted" originalist; he now says he tries to be "stout-hearted." If a state wants to impose flogging as a punishment, the Constitution as it was understood in 1791 would allow that, Scalia now says. The trouble with this position, as Linda Greenhouse notes in a charming OpEd , it is not possible to be a consistent originalist, in Scalia's sense, and he doesn't reallly try to be. My own view is that Scalia's faithfulness to the original understandings of the founders would require him to discard an enormous mass of precedent on which the Court relies, and must rely. Holmes was right, faithfulness to precedent is a necessity, as well as a duty.

Wednesday, October 16, 2013

Often neglected these days are Justice Holmes's opinions protecting the environment. The Supreme Court has decided to hear several challenges to EPA air pollution regulations, including a rule limiting the pollution a state can dump into anothers' air. The Environmental Defense today reminds us that Holmes affressed this problem in 1907:

“[i]t is a fair and reasonable demand on the part of a sovereign” in our federal system “that the air over its territory should not be polluted on a great scale … by the act of persons beyond its control.”

Tuesday, October 15, 2013

Harvard Historian Niall Ferguson reminds us of a famous quote from Holmes's still more famous dissent in the 1919 Abrams Case:

the best test of truth is the power of the thought to get itself accepted in the competition of the market

Ferguson brings this up now because the marketplace has to be conducted in civilized fashion, if it is to function. Government can't provide the needed regulation:

Like any market, however, the marketplace of ideas needs regulation: in particular, its participants should be bound by norms of honesty, humility, and civility. Moreover, every idea-trader should adhere to these principles....

Sunday, October 13, 2013

An interesting symposium hosted by SCOTUSblog helps us to see the tangle of doctrines presented for the Supreme Court's attention in the Michigan Affirmative Action Case to be argued tomorrow (Tuesday) afternoon. Hidden in the weeds, but uncovered nicely by Girardeau Spann's and Richard A. Epstein's contributions, is the conflict of doctrine with reality. Spann correctly points out that the provision of the Michigan constitution in question is artfully worded,but plainly was designed to reverse a Supreme Court decision upholding a race-conscious admissions policy at the state's prestigious law school. This seemingly neutral provision, the lower courts ruled, burdened racial minorities seeking relief from the burden of discrimination. Epstein replies with a doctrine:

I do not think that we have reached the point where colorblind legislation should be regarded as unconstitutional because of its supposed effect on the political process.

This is where we need Holmes's lesson on the importance of history. "The life of the law has bot been logic, it has been history." This sentence is in the opening passage of his monumental The Common Law,published when he was forty. When he was ninety, he returned to this core principle of his jurisprudence, a respect for historical fact: "A page of history is worth a volume of logic." We all know that the Fourteenth Amendment was adopted precisely to allow what we now call affirmative action on behalf of people of "color," the polite phrase for African-Americans and their descendants, to restore to everyone burdened with this label the rights of "white" citizens. In the infamous case of Plessy v. Fergusson, attorneys for Homer Plessy argued in very modern terms that the polarity of white and colored was created by bigotry and enforced by state law; the Fourteenth Amendment charged federal courts with the burden seeing to the undoing of that polarity which had allowed the arbitrary construction of a subordinated caste. Ignoring the plain facts of the case, the Court ignored (indeed hardly seemed to understand) Plessy's argument, and announced instead the doctrine of "separate but equal," founded on the disingenuous notion that supposedly equal treatment of the supposed races provided them equal protection of the laws. The Court has never managed to extricate itself from this pernicious doctrine, which is now put forth with unconscious irony as the doctrine of a "colorblind" constitution. Perhaps they will go behind these misleading slogans now at last. Justice Kennedy, are you listening?

Friday, October 11, 2013

Monday is Columbus Day, mourned in some quarters and often largely ignored, but still a national holiday, the premise for a four-day weekend. But in Washington, teams of lawyers will spend the weekend preparing for their oral argument in the Supreme Court Tuesday, in Schuette v. Michigan Coalition to Defend Affirmative Action. The question in that case is whether a state constitutional provision, adopted by the voters of the state in a referendum, violates the Equal Protection Clause of the Fourteenth Amendment. The new provision forbids invidious discrimination by race, and in the same breath forbids affirmative action.
Oral arguments are a pointless but necessary ritual. The justices rarely allow the lawyers to say much,and in effect conduct their own deliberations. On Tuesday, we all will be watching what the justices say. The case is likely to draw discussion of fundamental questions. Members of the Court who style themselves "originalists," when addressing the Fourteenth Amendment often rely on precedents that long ago departed from the text of the Constitution. Holmes, the great defender of the rule of precedent, likely would be with them.
On the other side in such cases, Justice Ruth Bader Ginsburg is likely once again to speak and eventually to write on behalf of Fourteenth Amendment originalists, who recognize along with nearly all historians and scholars that the principal aim of the Amendment was to give all persons born or naturalized in the United States, regardless of their race, the same rights that white citizens had held under state laws. Most of the laws adopted to enforce that Amendment were affirmative action measures, to undo the disabilities of color, imposed by whites. The Michigan referendum was a vote by the white majority, for a constitution barring minorities from seeking any legislation that would recognize or seek to remedy the disabilities imposed by race and gender. It would seem patently unconstitutional, but some of the justices may still be moved by the rhetoric of a "color blind" Constitution, as the Republican Party of Michigan,a friend of the Court, urges them to do. Denial of reality is a political program these days. Let's hope it doesn't become law.

Thursday, October 10, 2013

The collapse of government in Washington goes well beyond the shutdown of executive agencies. The collapse is so widespread that it is hard to keep up, but immigrants once again are among the victims of the nationalist movement that seems to be calling the shots. Republican leaders of the House have said repeatedly that they will not bring up any bill that provides a path to citizenship for the undocumented (because citizens vote). The dehumanization and removal of hundreds of thousands of Americans without papers will continue. Eight members of the House are reduced to joining in a protest and allowing themselves to be arrested as Huff Post tells us:

Activists and pro-reform members of Congress said the rally and civil disobedience were meant to show House Republicans that the pressure for an immigration bill will not cease. Gutierrez told advocates at the rally of thousands on the National Mall that they must "turn up the volume even more."
"Since the election last November, the United States has deported another 400,000 people," he said. "We know the enormous toll it takes on our families, our neighborhoods and our peace of mind. Our communities and our families do not have the luxury to rest or relax. One thousand, one hundred people will be deported today; 1,100 people will be deported tomorrow, and the next day."

No response from the Republican leadership has been reported. and none is expected. They are practicing their own form of civil disobedience.

Wednesday, October 9, 2013

Let's see: a few hundred very wealthy men and women, through a network of PACs and so-called "social welfare" corporations have been able to take control of the United States Congress and to shutdown the United Ststes government, by swamping Republican primaries with expensive media campaigns. At least four justices of the Supreme Court nevertheless seemed puzzled by the question put to them yesterday, whether there should be any limit at all on aggregate donations by a single individual during a federal election cycle. The billionaires, you see, have a First Amendment right to free speech.

The admirable Scotus Blog has an excellent summary of yesterday's oral arguments in McCutcheon v. FEC, the Republican challenge to limits on total campaign spending by individuals.

When the argument ended, there was no clear sign of consensus on the Court: although it seems likely that at least five of the nine Justices will strike down one of the aggregate limits, there was a chance that another would survive.

Some of the justices, sitting in the midst of the chaos that has descended on Washington, nevertheless seem not to see that unlimited spending by billionaires might pose a clear and present danger, one that resembles falsely shouting fire in a theater, and causing a panic. . . .

Tuesday, October 8, 2013

The helpful Constitutional Law Prof provides a link to Justice Scalia's long interview in this week's New York Magazine. Scalia, a likeable man, spoke freely about his beliefs and his determination to remain on the Court. He is evidently a man of doctrine--speaking of his solitary dissents, he does not say he disagrees with the other justices, he says only that they are wrong. The doctrine he most struggles against seems to be a straw man, however. Asked how he arrived at his originalist philosophy, he says:

Words [in the Constitution] have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

But it was Justice Holmes, answering the Scalia of his day, who said that a word in the Constitution "is not a crystal, transparent and unchanged, but the skin of a living thought." Holmes may have had a better grasp of the Founder's understanding. The written yext doesn't change, but the way in which its broad maxims apply to the modern world must be different than their eighteenth century application.

In Justice Scalia's earlier writings, he is more clear about the conflict of doctrines. What he opposes is the idea that the Supreme Court is a common-law court, bound by its own precedents, a doctrine that is now identified with Holmes. Scalia wants to use the text of the Constitution, as he believes the Founders understood it, to overrule those wrong decisions of the justices. He mentions Holmes in passing, but does not make quite clear that he disagrees on this fundamental question with arguably the greatest of American justices. In a touching conclusion,however, Scalia concedes that it will be Holmes's doctrine that in the long run governs.

If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.

Monday, October 7, 2013

The federal government is shut down, and the Supreme Court opens a new term today, its docket heavy with radical claims. The shutdown and the Court's radical docket are linked, and together amount to a grave constitutional crisis. A link between the two is provided by Edwin Meese, who according to the The New York Timesyesterday played a key role in planning for the shutdown. Meese you may recall was Ronald Reagan's Attorney General, who launched a movement that has succeeded to a surprising degree. With funds from a few hundred wealthy backers, this movement has advanced a theory which seeks to limit the Constitution to what its words meant to a few men in the eighteenth century, largely ignoring changes made after the Civil War, and precedents established by the Supreme Court in more recent decades. The avowed purpose, as expressed by Meese, was to roll back hated decisions of the Court in the Civil Rights era. Together with the billionaire Koch brothers, and a loose coalition of radical groups, the Times reports, Meese has also led planning for the present shutdown and threats of default. What we may be witnessing is a Constitutional moment of a kind historians describe, a moment when the constitutional framework shifts--as it did after the Civil War. If the Meese strategy works, the legislative power will be dominated even farther than it is now, not by Congress with its checks and balances, as the Constitutional provides, but by national political parties who rely in turn on wealthy donors and business corporations to finance their campaigns. Half shrouded by a political slogans and outrageous demands, the confrontation of the Tea Party Caucus with the President is the chosen ground for an attempt to alter the constitutional system. Justice Holmes, the great champion of duty and precedent is among the targets of Meese's campaign; perhaps if Holmes were here he would remind the Tea Party caucus of their oaths, and of their duty to accept what they cannot amend by lawful procedure. Perhaps he would remind the Justices as well that the Court has always considered itself bound by its own precedents, and that too is part of the constitutional system and the rule of law.

Sunday, October 6, 2013

We have had occasion before to observe, as Justice Holmes liked to remind his colleagues, officials of the federal government have duties. Amid all the blather of pundits about "polarization" and "partisanship," those constitutional duties of our government lie forgotten. The Constitution gives to Congress the legislative "powers" of the national government, but it also requires members of that body to be "citizens;" which is to say, men and women who have a sense of their duty to govern in the public interest. There are no checks and balances that can enforce this fundamental duty. We must rely on the Representatives' and Senators' sense of their duty as citizens. Yet a giddy bunch of Republicans, a minority within a minority, have engineered a shutdown of the federal government, simply as a piece of political theater,a performance for the cameras to express their power, and their hatred of the president. No one pretends this will have any positive result. An even more grave breach of duty looms, with the threat of a default on government debt. The Constitution is quite explicit about the duty of Congress in this regard. The Fourteenth Amendment says

The validity of the public debt of the United States, authorized by law, including debts incurred for the payment of pensions . . . shall not be questioned.

The default which some Republicans threaten would be unconstitutional, and many have urged the President to continue paying our debts. But he can't and won't; this is above all Congress' duty, to pay the debts that they themselves have incurred. That duty is stated in the Constitution because it is a constitutive principle of our nation: the existence of the United States has more than once depended upon the willingness of our friends to lend money, to enable the government to defend itself against British aggression and Southern rebellion. Those members of Congress who most loudly claim their fidelity to the Constitution have abandoned their duty to pay our debts, and ought to be ashamed of themselves.

Friday, October 4, 2013

Nicely coinciding with the opening of the October 2014 term of the Supreme Court Plunkett Lake Press has announced publication of a new eBook edition of my book Honorable Justice: The Life of Oliver Wendell Holmes. This is the fourth edition of the book, which was first published in hardcover by Little, Brown and Company. The book has received several awards, and reviews of the print edition were gratifyingly positive. The New York Times Sunday Book Review, for instance, in a full-page notice said

One opens his book with high hopes, and as chapter follows masterly chapter the hopes mature into admiration of author and awe of subject.

Judge Richard Posner praised it in the Wall Street Journal, and The New Yorker called it "an ideal biography for the intelligent general reader."

I have added a new preface for this edition, addressing among other things the importance of Holmes's opinions as a counterweight to the radical new readings of the Constitution that a shifting majority of the Supreme Court threaten us with in the term just beginning.

Thursday, October 3, 2013

Lawyers (and judges) have only just given up their yellow "legal" size pads of paper; no wonder we still write badly. Here is what Holmes said, courtesy of Dan Ernst on the Legal History Blog:

In the summer of 1980 Erwin Griswold remembered calling upon Justice Oliver Wendell Holmes some fifty years earlier. “As we went into his room he took a great big thick brief and threw it in the wastebasket,” Griswold recalled. Holmes said, “‘147 pages long, I don’t read ‘em when they’re that long and I don’t care who knows it either.' And then he said, ‘I don’t see why lawyers do the things they do. First they make the point and then they put it in black letters and then they repeat it and then they put it in italics and then they say it again and then they put it all capital letters.’ He said, ‘I don’t see why they write it the way the Germans do, with emphasis and reiteration. I don’t see why they don’t . . . suggest something and leave it to our imagination, like a questionable French novel.’”

Wednesday, October 2, 2013

A minor irony of the government shutdown is that it may deprive or at least delay the Republican National Committee getting their chance to argue that remaining limits on political contributions should be lifted. The Supreme Court is--was--scheduled to hear arguments in McCutcheon v. Federal Election Commission in which Mr. McCutcheon, supported by RNC, claims that he wants to contribute $1776 to a long list of Republican candidates, but is unable to do so because of federal law limiting the aggregate contributions made by one person to a candidate or a party in a federal election. The RNC and Mr. McCutcheon argue that money is speech, or the ability to speak, and Mr. McCutcheon's quaint message in the form of dollars is arguably protected by the First Amendment. The federal government does have the power and the obligation to regulate elections to see that democracy is not subverted, so there are two constitutional principles in conflict, and the Court will be obliged to choose between them. That is what Holmes, the patriarch of First Amendment jurisprudence, said was their duty in such cases: to choose.

On Monday, however, the Office of Management and Budget sent a memo to all federal agencies saying that Congress had failed to make appropriations for the new fiscal year, all government agencies accordingly should implement their plans for orderly shutdown. The Supreme Court then issued a memorandum of its own.

In the event of a lapse of appropriations, the Court will continue to conduct its normal operations through October 4. The Court building will be open to the public during its usual hours. Further notice will be provided in the event a lapse of appropriations continues beyond October 4.

The implication is that the Court may not be able to hear argument in the McCutcheon case on Tuesday, Oct. 11 as scheduled, if the government shutdown continues. We suspect the McCutcheon case was brought on behalf of the same contributors to Republican primary campaigns who have urged the shutdown. Perhaps the irony will not be lost on the Justices of the Supreme Court, who may find their ability to hear McCutcheon's claim is drowned out by his own undue influence on the political process.

Friday, September 27, 2013

Pardon me for going on about this, but the situation of the Afghani translator, aside from the tragedy that is unfolding, tells us a lot about what is going wrong just now. One has to get pretty far down into the weeds to see the legal problems he faces, but the problems are common to many immigrants and deportees. The US embassy has revoked his visa, and the US federal courts have decided that they have no jurisdiction to review such "consular" decisions. They have also held that someone outside the US who is not a US citizen has no constitutional rights. But this man served for nine years (nine years!) with our combat troops, apparently with distinction, and if he had enlisted would be eligible for citizenship. Well, he didn't and he's not. But the Constitution grants the rights of minimal due process to all "persons" (not just citizens) under US control, and if the detainees at Guantanamo can get a hearing, why should not a man like this Afghani hero? I summon the ghost of Justice Holmes to argue on his behalf.

There are a great many people, including some thousands of US citizens, who have been deported and therefore have no further access to our judicial system, one of the many defects of our archaic, dysfunctional, federal immigration and citizenship laws. Judging by the facts that have been made public, any sort of hearing conducted with even minimal fairness would exonerate the man, and most likely many thousands more who are in similar positions. But don't wait for Congress to act. The President can't do much about the broken immigration system, but this is one problem he can address. He just needs to impose some modest rationality and fairness on American consulates and embassies.

I spent the next few days calling the US embassy in Kabul and State Department to no avail. After total silence, they finally told me that his visa was revoked for reasons they could not legally address. I investigated further and had my worst suspicions confirmed: in the two weeks since the State Department issued his visa, an anonymous "informant" contacted the US government and claimed all sorts of things about Janis. The informant's bogus claims eventually reached an analyst at the National Counter Terrorism Center (NCTC) in Washington DC who promptly put a security hold on Janis' visa, prompting the State Department to revoke it altogether.

It's fairly common for the Taliban to read the US news. I can't help but think that they learned of our successful efforts to secure Janis his visa via the extensive coverage our efforts generated. They used to call our base in Afghanistan and claim all sorts of lies about our interpreters in an attempt to get us to fire them. The Taliban are almost certainly the source of the anonymous tip and now they have more time to hunt him and his family down and kill them.

This is bureaucracy at its worst, but one feels a little sympathy for the embassy officials who face the prospect of Benghazi-style hearings if they catch the attention of Congressional Republicans, who opposed the visa program in the first instance and are unlikely to allow it to be renewed.

Holmes might have something to say about the contemptible handful of billionaires and the frightened Republicans they have in thrall. In a case concerning an Irish bootlegger gang, the Administration used unlawful wiretaps in pursuing them, and a majority of the Court decided to allow the illegally obtained evidence at their trial. Holmes tried to recall them to their sense of duty, and to their oath to the Constitution:

We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

Holmes always tried to recall us to our duty. The famous phrase, "think not what your country can do for you. . . " is paraphrased from one of his speeches. Would that the irresponsible billionaires and their Congressman would hear this call. A great many immigrants, including that Aghani translator, would be relieved to hear that the call had been answered.

Thursday, September 26, 2013

The last week in September is Banned Books Week, sponsored by the American Library Association--a reminder that most attempts to suppress books are made in libraries, especially public libraries. Such efforts at oppression are still often made but are rarely successful owing to the profound strength of our constitutional system. What is at stake is much more than the rights of authors and publishers, the principle we defend is the right of the public to hear every voice. Justice Holmes is a kind of patron saint of our Freedom to Read, largely because of his eloquent opinions in a series of Supreme Court cases during and after the First World War. Those cases and opinions are explained in my book Honorable Justice,which has a new preface for the eBook edition released this month, in which I point out Holmes's continuing importance for our freedom to read. The privilege afforded by the Constitution to authors and publishers rested on something fundamental, Holmes thought, a principle that lay beneath the whole structure of constitutional law. He believed that the freedom to argue protects us from violence, and freedom of the press protects us from an oppressive government. Freedom to read, he seemed to say, even more than the freedom to write, is fundamental to the rule of law. My personal popgun doesn't protect me from the greatest military power in history; successful rebellions today begin with peaceful demonstrations broadcast to all the world; they begin with poetry and rap music and books. It is the right of the public to hear, much more than the right of the author to speak, that protects our constitutional system. In my book I quoted Holmes's most famous opinion, his dissent in Abrams v. United States, decided in 1919. What offended Holmes most deeply was the prosecution of political dissidents, whose beliefs were examined and then punished:

[T]he defendants are to be made to suffer not for what the indictment alleges but for the [socialist] creed that they avow--a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider when dealing with the charges before the Court.

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good to be desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

When Mikhail Gorbachev began to dismantle the totalitarian rule of the Communist Party of the Soviet Union, the first rights that were asserted were the rights to criticize the Party and the government. In an address to an invited audience of American lawyers, of whom I was one, he said that his aim was to establish a government founded on truth. He was telling us what we wanted to hear, perhaps, but he did seem to understand the rule of law that we had been invited to explain.

Wednesday, September 25, 2013

Wikipedia's article-of-the-day today is about the late Anthony Lewis's celebrated book, Freedom for the Thought that We Hate, whose title is a quote from an opinion by Holmes. Lewis was a long-time columnist and legal affairs reporter for The New York Times, and w also taught at the Harvard Law School. Between his teaching and his celebrated journalism Lewis did much to establish Justice Holmes's reputation as the father of modern freedom of speech and of the press. Lewis and I exchanged letters, both privately and in print, concerning Holmes' contribution to First Amendment jurisprudence, about which we disagreed. There is no question that Holmes's dissenting opinions--like the one that Lewis quoted in his title--are of great continuing importance. Our disagreement concerned an earlier set of opinions that Holmes wrote for a unanimous Court, during the First Word War. In those opinions, he used the famous phrase "clear and present danger" to describe speech that could be punished. Even political speech, the Court decided, could be punished if in the circumstances in which it was uttered it posed a clear and present danger of causing actual crimes to be committed. Holmes's famous example was the false cry of "fire" in a theater. Lewis didn't care for those earlier opinions, which are still often cited, and wanted to praise only the later dissents in which Holmes passionately championed the principle of freedom of thought and expression. I thought the two sets of opinions were parts of a single overall philosophy, while Lewis claimed that Holmes had changed his mind, and abandoned those earlier view.

This might not seem to matter much, except to biographers. What might have some larger significance today, however, is that in all of his opinions concerning freedom of expression, Holmes did not quote and barely mentioned the First Amendment. He was not an originalist, and did think the text of the Constitution was a kind of fixed code. He argued rather that the Constitution rested on core principles which were part of the fabric of the law. His opinions celebrating the First Freedom rest on those principles, of ewhich freedom of expression was assuredly one. As he said in his dissent in United States v. Schwimmer,

[I]if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.

Not the First Amendment: the Constitution itself. The Constitution as a whole, the very rule of law, rested on this principle: peaceful competition of ideas and interests, in place of violence and warfare.

Wednesday, September 18, 2013

Carlo A Pedrioli has posted an interesting article on the social science research network, in which he says Supreme Court opinions that show fidelity to precedent are expressions of the "Holmesian voice" in constitutional law, taking Holmes as the model of a common-law judge. He contrasts the Holmesian voice with the more activist or result-oriented opinions of Justice Brennan for the Warren Court. He doesn't extend his analysis to consider whether Holmes's common-law jurisprudence stands in opposition to the doctrinaire "textualism" of Scallia et al., which seems equally result-driven.

Tuesday, September 17, 2013

Holmes still speaks to us on important matters, perhaps because he insisted on looking through formal doctrines to see the reality we try to govern. The central pillar of the rule of law, he thought, was the principle of fairness. People charged with crimes, he said, were entitled to a fair hearing, and fairness was to be judged according to the circumstances. Sounds like common sense, but in the famous Leo Frank case a majority of the Court upheld what amounted to a judicial lynching. A majority of the Supreme Court voted to defer to a Georgia jury, which in the presence of a mob convicted a Jewish immigrant of murder (wrongly, as later events proved). Scholars today remind usthat Holmes dissented in that case, and for a time persuaded the Supreme Court to follow him, by saying that "This is not a matter for polite presumptions; we must look facts in the face." The forms were preserved, but the rule of law had been flouted, and Holmes characteristically insisted that it was the duty of the Supreme Court to judge for itself whether a fair trial had been conducted. This briefly became the Supreme Court's principle in habeas corpus cases, where the fairness of state proceedings was in question, but with the recent revival of states' rights in Congress and among a majority of the Supreme Court,we are back to polite fictions; the Court majority once again refuse to face the reality of criminal proceedings in local courts. A similar abandonment of duty is evident in cases concerning the rights of immigrants. The United States Supreme Court declines to revisit past convictions in which the defendant was an immigrant wrongfully deported from the United States because of a guilty plea in a state court, when the plea was entered in ignorance of the likely consequence. The Massachusetts Supreme Court has just announced a contrary doctrine, in effect brushing aside formalities and recognizing its duty to protect the rights of defendants, even those of "criminal aliens."

Tuesday, September 10, 2013

A Missouri Governor is campaigning on behalf of taxes to support schools and other essential functions of government. Why is not Holmes's aphorism a political slogan?

As a Democrat facing a State Legislature with veto-proof Republican majorities, Gov. Jay Nixon of Missouri has not claimed big victories lately. So when he began stumping the state against a deep Republican tax cut that he had vetoed, he might have seemed to be on a political fool’s errand.

Thursday, September 5, 2013

ImmigrationProf has helpful links, a summary of oral arguments Tuesday and video of the arguments before the California Supreme Court, in the case of Dreamer Sergio Garcia, who has applied for admission to the bar. The US takes the position that the federal government's irrational fear of immigrants trumps California's law, under which Mr. Garcia has a right to a law license. Because the hearing addressed the Bar Examiners' recommendation that he be admitted, most of the argument hinged on state versus federal power; but if the California court refuses to admit him, he will have a chance to assert his own rights, which cannot be denied solely because of the irrational animus toward immigrants that the U.S. Congress has expressed.

Tuesday, September 3, 2013

In the case described in the quote below, the Administration is opposing a Dreamer's application for admission to the bar, to which he has a right under California law. The Administration presumably is trying without success to mollify anti-immigrant hostility, but the case gives the courts a chance to emphasize the constitutional rights of immigrants. You need a reason other than irrational fear to deprive someone of their rights: United States v. Schwimer (1928) (Holmes, J. dissenting).

"On May 16, 2012, the Supreme Court issued an order directing the Committee of Bar Examiners to show cause why the court should grant the committee's motion to admit Sergio C. Garcia to the State Bar as a licensed attorney. This question presented by the case is whether an undocumented immigrant who has graduated from law school and passed the California bar examination may be admitted to the California Bar or whether such admission is precluded by any federal statute or for any other reason.
The Committee of Bar Examiners certified his name to the Supreme Court for admission to the State Bar. The bar notified the court of Garcia’s immigration status at the time the motion was filed. The Supreme Court’s order directed the Committee of Bar Examiners and Garcia to file briefs in support of the Committee’s motion and invited others to file amicus curiae briefs in the Supreme Court. The order specifically invited amicus participation by the Attorneys General of California and the United States."

Friday, August 30, 2013

You might not think Justice Holmes had an opinion about Section 4 of the Voting Rights Act of 1965, but Justice Clarence Thomas summoned up his ghost, and his authority, in Shelby County, Alabama v. Holder, decided just last June. Justice Thomas in his separate opinion claimed that Section 4 was unconstitutional, despite the elaborate finding by Congress that it was still needed to enforce the commands of the Fifteenth Amendment, which prohibits states from discriminating by race in voting. Justice Thomas cited Holmes's opinion in Giles v. Harris (1903), maybe not Holmes best moment but the opinion certainly should give no comfort to Thomas or his brethren in the majority. Holmes wrote an opinion in that case explaining that the Court could not issue an injunction to halt the outrageous racial discrimination going on in Alabama, without prior authority from Congress.... Not exactly the argument you should make when striking down a Congressional mandate to halt outrageous race discrimination by race in Alabama. Sigh. Justice Thomas should know better; he was photographed, looking rather unhappy it is true, during his confirmation hearing holding a copy of my book Honorable Justice: The Life of Oliver Wendell Holmes.

Speaking of Shelby County, Justice Ruth Bader Ginsburg in her powerful dissent had by far the better argument, and might more reasonably have cited Holmes. She pointed out that the majority was ignoring the Court's own precedents in order to announce a new doctrine, a rule that the states must all be treated the same by Congress. Aside from the lack of any basis for this rule in precedent or in the Constitution, as she also pointed out, the majority had neglected to address the first question in the case, whether Shelby County's history of continued racial discrimination justified the Attorney General in demanding to see their latest efforts in election law. In its eagerness to announce a doctrine, the majority of the Court neglected their sole constitutional duty, which was to decide the case before it. Holmes was the great practitioner of the common law, and has always been highly regarded for his willingness to defer to the reasonable enactments of Congress, and his modest view of the Court's duty simply to follow precedent, by deciding like cases alike. Justice Ginsburg shows herself the inheritor of his deep sense of the justices' constitutional duty, and of the best of the common law tradition.